Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law
By Eric Segall
I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.
The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.
Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.
As I am the author of the essay, "The Constitution Means What the Supreme Court Says it Means," I couldn't let all this pass.
Steve's argument, in brief, which he has made in print as well, goes something like this: Judicial opinions can be a "source of law," and can be res judicata or the law of the case, and may have legal force, but "they do so by treating the judicial decisions as if they were law, and not by substituting those decisions for the underlying legal standards on which they’re based." Steve argued, for example, that the Fourth Circuit's decisions are binding in Maryland but not Delaware, "even though the same Fourth Amendment applies in each state." Moreover, "the same theory can be applied to courts of last resort. There’s no reason why the holdings of the Supreme Court of the United States have to be taken to represent 'the law,' as opposed to 'the law of the Supreme Court,' binding on other courts within the range of its appellate jurisdiction."
Similarly, Chris has often argued the Constitution means what it means notwithstanding erroneous Supreme Court decisions. Public officials take an oath to uphold the Constitution, not what the Court says the Constitution means.
Before I respond to these arguments, let me suggest why this debate is so important. Steve and Professor Will Baude have spent much ink arguing that originalism is in fact and deed our law (a thesis Chris is sympathetic to), while I have devoted much effort to arguing that oiriginalism is most certainly not our law. Steve, Will and Chris claim that the founders' law, the Constitution, is our law until it is lawfully changed, and that we debate that law using originalist arguments and criteria.
Crucial to their arguments is the idea that non-originalist, anti-originalist, in fact all court decisions are not "our law." Instead, our law is the law of the original Constitution, as amended, even if the Court frequently gets that law wrong. The connection here is that only the Constitution (and valid federal statutes and regulations) are law, whereas Supreme Court decisions that are inconsistent with our original law are not law, even if we treat them as coercive. I interpret this, and I'm pretty sure Steve and Will agree, as a positivist argument.
At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).
The Fourth Circuit and other Circuits may disagree, and often do, on constitutional issues. Unless the Supreme Court steps in, however, the constitutional law of each circuit is what the highest court in that circuit says it is. To describe these decisions as not law is to adopt an outsider's perspective to what the players in the system believe and how they act.
That last point makes me wonder who Steve, Chris and Will think they are taking to. At the beginning of my remarks at the debate, I mentioned that Steve is an excellent historian and philosopher and that Chris is a master of philosophical and linguistic arguments. These are sincere compliments. But I then told the students that most of them will be lawyers, some will be judges, but few will be historians or philosophers. The issue I care most passionately about and devote most of my scholarship to figuring out, and the one that matters on the ground, is what should a judge do when a plaintiff comes into court arguing that she should invalidate decisions of other more accountable political actors. That is the moment we should be discussing. And in this country as of today, the best descriptive account of what judges will do, meaning which party they will rule for and why, has much more to do with Supreme Court precedent, which most of the time will not be originalist in nature, than the 1787 or 1868 Constitutions. David Strauss' common law constitutionalism more accurately describes what judges do than Steve and Will's account and demonstrates that prior case law matters much more than text and history to judges in real courtrooms deciding real cases.
A few years ago, prior to the Court's opinion in Fisher v. Texas II, I confidentially asked numerous admissions officers at elite schools whether they would comply with a Court decision ending all affirmative action. Their answers were instructive. Three of them said that they would find a way to ascertain the race of the applicants and they would use substantial efforts to find a "way around the law," meaning the upcoming Court decision.
For all practical purposes, the Constitution means what the Supreme Court says it means, which is why Georgia can't yet prohibit all abortions, Montana can't regulate corporate political speech the way it wants to, and Alabama must recognize same-sex marriages. Philosophers can debate whether court decisions are "law," in a technical sense, language experts can ask whether there is a difference between saying "the meaning of the Constitution changes as outcomes change" or saying "only the applications of the same text change," and we can all debate whether or not originalism is our law as a theoretical manner. But two things are true: 1) constitutional law evolves and changes every term even though the text remains exactly the same, and 2) non-judicial political actors and the American people treat court decisions as law from traffic courts all the way up to the Supreme Court. That being the case, it is more than perplexing to me that legal positivists would argue that court-made law isn't real law.
I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.
The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.
Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.
As I am the author of the essay, "The Constitution Means What the Supreme Court Says it Means," I couldn't let all this pass.
Steve's argument, in brief, which he has made in print as well, goes something like this: Judicial opinions can be a "source of law," and can be res judicata or the law of the case, and may have legal force, but "they do so by treating the judicial decisions as if they were law, and not by substituting those decisions for the underlying legal standards on which they’re based." Steve argued, for example, that the Fourth Circuit's decisions are binding in Maryland but not Delaware, "even though the same Fourth Amendment applies in each state." Moreover, "the same theory can be applied to courts of last resort. There’s no reason why the holdings of the Supreme Court of the United States have to be taken to represent 'the law,' as opposed to 'the law of the Supreme Court,' binding on other courts within the range of its appellate jurisdiction."
Similarly, Chris has often argued the Constitution means what it means notwithstanding erroneous Supreme Court decisions. Public officials take an oath to uphold the Constitution, not what the Court says the Constitution means.
Before I respond to these arguments, let me suggest why this debate is so important. Steve and Professor Will Baude have spent much ink arguing that originalism is in fact and deed our law (a thesis Chris is sympathetic to), while I have devoted much effort to arguing that oiriginalism is most certainly not our law. Steve, Will and Chris claim that the founders' law, the Constitution, is our law until it is lawfully changed, and that we debate that law using originalist arguments and criteria.
Crucial to their arguments is the idea that non-originalist, anti-originalist, in fact all court decisions are not "our law." Instead, our law is the law of the original Constitution, as amended, even if the Court frequently gets that law wrong. The connection here is that only the Constitution (and valid federal statutes and regulations) are law, whereas Supreme Court decisions that are inconsistent with our original law are not law, even if we treat them as coercive. I interpret this, and I'm pretty sure Steve and Will agree, as a positivist argument.
At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).
The Fourth Circuit and other Circuits may disagree, and often do, on constitutional issues. Unless the Supreme Court steps in, however, the constitutional law of each circuit is what the highest court in that circuit says it is. To describe these decisions as not law is to adopt an outsider's perspective to what the players in the system believe and how they act.
That last point makes me wonder who Steve, Chris and Will think they are taking to. At the beginning of my remarks at the debate, I mentioned that Steve is an excellent historian and philosopher and that Chris is a master of philosophical and linguistic arguments. These are sincere compliments. But I then told the students that most of them will be lawyers, some will be judges, but few will be historians or philosophers. The issue I care most passionately about and devote most of my scholarship to figuring out, and the one that matters on the ground, is what should a judge do when a plaintiff comes into court arguing that she should invalidate decisions of other more accountable political actors. That is the moment we should be discussing. And in this country as of today, the best descriptive account of what judges will do, meaning which party they will rule for and why, has much more to do with Supreme Court precedent, which most of the time will not be originalist in nature, than the 1787 or 1868 Constitutions. David Strauss' common law constitutionalism more accurately describes what judges do than Steve and Will's account and demonstrates that prior case law matters much more than text and history to judges in real courtrooms deciding real cases.
A few years ago, prior to the Court's opinion in Fisher v. Texas II, I confidentially asked numerous admissions officers at elite schools whether they would comply with a Court decision ending all affirmative action. Their answers were instructive. Three of them said that they would find a way to ascertain the race of the applicants and they would use substantial efforts to find a "way around the law," meaning the upcoming Court decision.
For all practical purposes, the Constitution means what the Supreme Court says it means, which is why Georgia can't yet prohibit all abortions, Montana can't regulate corporate political speech the way it wants to, and Alabama must recognize same-sex marriages. Philosophers can debate whether court decisions are "law," in a technical sense, language experts can ask whether there is a difference between saying "the meaning of the Constitution changes as outcomes change" or saying "only the applications of the same text change," and we can all debate whether or not originalism is our law as a theoretical manner. But two things are true: 1) constitutional law evolves and changes every term even though the text remains exactly the same, and 2) non-judicial political actors and the American people treat court decisions as law from traffic courts all the way up to the Supreme Court. That being the case, it is more than perplexing to me that legal positivists would argue that court-made law isn't real law.